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Laws Affecting Reproductive Health and Rights:
Trends in the First Quarter of 2012

To date, legislators have introduced 944 provisions related to reproductive health and rights in 45 of the 46 legislatures that have convened this year. (Legislatures in Montana, Nevada, North Dakota and Texas do not meet in 2012.) Fully half of these provisions would restrict abortion.

So far this year, 76 abortion restrictions have been approved by at least one legislative chamber, and nine have been enacted. This is below the record-breaking pace of 2011, when 127 abortion restrictions had been approved by at least one body, and 38 had been enacted by this time last year. However, the overall level of legislative activity is nonetheless significantly higher than usual for an election year: In 2010, for example, only 46 such restrictions had passed at least one house by this point, while in 2008, only 34 had passed one chamber by the end of the first quarter. (The number of enacted abortion restrictions totaled 19 at this point in 2010, but in 2008, none of the enacted bills restricted access to abortion.)

With respect to abortion, legislators are paying particular attention to three types of measures this year: those that would require a woman seeking an abortion to undergo an ultrasound; limit access to medication abortion; and prohibit abortion at a specific point in gestation—generally in the second trimester, well before fetal viability. Aside from abortion, legislators in several states—mirroring the debate at the national level—are considering allowing employers to refuse to provide insurance coverage of contraception.

For a full accounting of proposals and enactments on a range of reproductive health and rights issues, click here.

Ultrasound Requirements

So far this year, legislators in 11 states (AK, AL, ID, IA, KY, MI, MN, MS, PA, RI and VA) have introduced provisions that would require a woman to undergo an ultrasound prior to receiving an abortion.

In February, a U.S. District Court upheld Texas’ 2011 law, clearing the way for it to go into effect immediately. In March, Virginia Gov. Bob McDonnell (R) signed a similar measure. Both laws stipulate that certain fetal characteristics must be visible in the ultrasound image to determine gestational age. Although the final versions that were signed into law—unlike an earlier, widely publicized version in Virginia—do not explicitly require providers to perform a transvaginal ultrasound, doing so is likely the only way to achieve that required level of clarity, at least for abortions performed in the first trimester. Both laws also require a woman who lives within 100 miles of the abortion facility to obtain an ultrasound at least 24 hours before the abortion, thus necessitating two trips to the facility. Once the Virginia restriction goes into effect in July, eight states will require a woman to undergo an ultrasound prior to an abortion (see Requirements for Ultrasound).

The Texas law, as would a provision that has been approved by the Senate in Kentucky, requires providers to show the woman the image and describe it to her. The Virginia law, as would a measure that was approved by the Senate in Idaho, requires providers to offer to show the woman the image and give her a description.

In addition, legislators in five states (IL, IA, MA, NJ and NY), have introduced provisions that would oblige abortion providers to offer patients the opportunity to undergo an ultrasound prior to an abortion procedure.

Medication Abortion Limitations

Legislators in 11 states have introduced restrictions on medication abortion. The provisions introduced in 10 of these states (AL, IN, IA, MI, MN, MS, MO, OK, TN and WI) would prohibit use of telemedicine by requiring that the physician prescribing the medication be in the same room as the patient. Three of these—in Indiana, Mississippi and Oklahoma—have passed one legislative body. Provisions in two additional states have been approved by the legislature and are awaiting action by the governor. As of this writing, a telemedicine ban is awaiting signature in Wisconsin and Tennessee. (The Tennessee measure is not a new restriction, but rather would move forward the effective date of the state’s previously enacted ban to July 2012 from January 2013.) Currently, four states ban the use of telemedicine to prescribe medication for abortion (see Medication Abortion).

In seven states (AL, AZ, IN, IA, MI, MS and MO) legislators have introduced measures that would require the provision of medication abortion to be in strict accordance with long-standing FDA protocol. This would prohibit use of a widely used, simpler protocol that has been demonstrated to be safe and effective. The provision in Arizona has passed the Senate and is awaiting action in the House. A similar law is in effect in Ohio, while laws in North Dakota and Oklahoma are enjoined pending the outcome of ongoing litigation.

Gestational Limits on Legal Abortion

Legislators in 14 states have introduced legislation that seek to restrict abortion later in pregnancy—but prior to fetal viability. In 10 of these states (FL, GA, IA, LA, MI, MN, MS, NH, VA and WV), the provisions would ban abortion at 20 weeks postfertilization, which is the equivalent of 22 weeks’ gestation (as pregnancy is conventionally measured, from the woman’s last menstrual period). These restrictions are based on a 2010 Nebraska law that has already served as the model for laws in five other states (see State Policies on Later Term Abortion).

The proposed provision in Georgia has passed the legislature and is awaiting signature by Gov. Nathan Deal (R). It would permit an abortion after 22 weeks’ gestation only in cases of life endangerment, possible “substantial and irreversible physical impairment of a major bodily function” or fatal fetal impairment. A provision that would only permit abortion after that point in cases where the woman’s life or physical health is threatened has been approved by the House in New Hampshire.

Legislators in six states (AZ, FL, NH, NJ, OK and SC) have introduced provisions that would ban abortions at other points in pregnancy: 18 weeks postfertilization in Arizona and Oklahoma, 22 weeks postfertilization in New Jersey and South Carolina, 25 weeks postfertilization in Florida and during the third trimester in New Hampshire. All would permit an abortion when continuing the pregnancy would threaten a woman’s life or health, although those in New Jersey and Oklahoma would exclude mental health emergencies. None contain exceptions in the case of fetal anomaly; in fact, the Arizona provision would go so far as to require a referral to a perinatal hospice for a woman seeking an abortion because of a “lethal fetal condition.” Of these, the Arizona and Florida restrictions have been approved by one house of the legislature.

Refusal to Provide Contraceptive Coverage

Legislators in five states (AZ, GA, NH, NJ and NY) with contraceptive coverage mandates have introduced legislation to expand existing exemptions, or create new ones, for certain employers (see Insurance Coverage of Contraceptives). So far this year, provisions have passed one chamber in Arizona, Georgia and New Hampshire.

The Arizona proposal would allow any employer that claims a religious objection to refuse to provide contraceptive coverage; current law provides an exemption only for nonprofit organizations that primarily employ and serve individuals sharing their religious beliefs. (The pending legislation would require coverage in cases where contraceptives are used for noncontraceptive purposes.) The new Georgia exemption would be similar to that in the existing Arizona law, that is, limited to religious employers whose purpose is the inculcation of religious values and that primarily employs individuals sharing those values. The new exemption proposed in New Hampshire mirrors the proposed new provision in Arizona; it would allow any employer to refuse to provide the coverage based on religious beliefs.

Finally, although neither Idaho nor Oklahoma has a contraceptive coverage mandate, legislators in both states are nonetheless proposing refusal policies. The Oklahoma provision, which has cleared the House, would allow either an employer or enrollee to opt out of coverage for contraception or abortion. A similar exemption introduced in Idaho would permit a refusal to cover sterilization.